Health and Safety of the UK Citizens - Essay Example

1 LAW AND HEALTH AND SAFETY Introduction In so many instances UK citizens had been shocked to their senses by horrid events that were caused by dangerous conditions of properties, which perils were negligently allowed by their owners and which continually pose hazards to the public. There was an instance where a 4-year old child plunged to his death when he tripped and fell headlong through the unprotected cover of a mill wheel ( Addie v Dumbreck). In another case, a man swimming in a pond which was infected with leptospirosis virus called Weil's Disease was overwhelmed with such miasma and drowned to his death ( Darby v National Trust). Then a 2-year old child went through a broken stile on a footpath and into the railway line where she was struck dead by a rampaging train ( Thomas v British Railways Board). These are just some cases where the public is left open to the hazards of the dangerous conditions of properties. In response to these alarming scenarios, UK had enacted several statutes to foster public health and safety. Already in place are UK's Torts Act 1977, laws on public nuisance, Public Health Act 1936, Defective Premises Act 1972, Fatal Accidents Act 1976, (Harpwood 2005,p.196-384) and the Occupiers Liability Act 1984. 2 The Issues From the onset we must clarify that there is no contractual relationship between the owner of the property and the spouses . Since they came in to the premises uninvited , they must be deemed as trespassers as defined in the Occupiers Liability Act 1984 but the nagging question then is must the company be absolved from liability and the spouses be considered to have taken undue risk and must suffer for their own misfortune. Or must the company be liable for the damages done on the basis of 'res ipsa loquitor' principle on Torts as it cannot be denied that damages happened in its property and therefore there is an assumption of negligence and want of due care on its part. Thus, must the company be considered a tortfeasor which has the burden of proof of proving that it is not guilty of negligence in immediately fencing the condemned property after knowledge of possibility of causing harm to the public and that it exercised due standard of care. If it fails to prove both, must it answer for damages incurred to the spouses on the basis of failing to qualify for the 'reasonable man test'(Bolton v Stone) and on grounds of nuisance. Lastly, whether spouses by trespassing in a property which has a warning sign that people will be entering at their own risk guilty of contributory negligence by which company can hide under the doctrine of limited liability and whether by such act the spouses must be assumed to have voluntarily exposed themselves to the risk and thus must be precluded from recovery for injuries they suffered therefrom under the principle of "volenti non fit injuria" (Barker 2002,p.181). 3 Statement of Relevant Laws The basic law that governs this case is the UK Torts Act 1977 specifically quasi-delict or culpa aquiliana which provides that where there is no preexisting contractual relationships between the parties, the party who by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Thus, the definition contained in a nutshell the requisites of tort liability ( Harpwood 2005,p.22). Also part of the law of torts which governs the case is nuisance. Nuisance is the "unreasonable use of land by one landowner to the detriment of neighbors" ( Miller v Jackson). The term nuisance is culled from the French word 'nuire' which means to injure, hurt or harm and thus encompasses tortious acts or conditions of property that cause hurt, inconvenience or injury and exists because of failure to perform a duty and acts of negligence, recklessness or ultra-hazardous conduct. Liability under nuisance is based on the familiar maxim 'sic utere tuo ut alienum non laedas', meaning that every person should so use his own property so as not to injure another (Getzler 2004,p.122). Relevant to this case is the Occupiers' Liability Act 1984 which imposes to the owner or occupier of premises the common law duty of care to trespassers who may face the specter of injury in the premises (Potter 1997,p.185). This limits its scope only to dangers due to the harmful state of premises or to tortious acts done or omitted to be done on them (Fairchild v Glenhaven Funeral Services Ltd). The UK Public Health Act 1936 identifies and controls dangerous premises that offer possibility of injuries to the public and gives the local authorities the police power to abate 4 and end them (Martin, 2001,p.76). The Defective Premises Act 1972 meanwhile, obligates anyone engaged in construction or repair work on land to exercise due care to remove any possibility of harming anyone including trespassers(Murphy 2007,p.222) In one case, a contractor who failed to do so was held liable for negligence (AC Billings & Sons Ltd v Riden). The Fatal Accidents Act 1976 makes anyone who causes the death of anybody through his wrongful act or omission liable for the payment of damages to the dependents of the deceased (O'Hare 2007,p.48). Application of Law to Scenario The laws on torts, nuisance and Occupiers' Liability Act make the development company liable for the death of Fred, the injuries suffered by Freda and the destruction of their car. Under the 'res ipsa loquitor' maxim, the burden of proof is on the company that it was not negligent and it exercised due care to its premises (Harpwood 2005,p.138). Thus, the company should hire a lawyer to rebut the inference of negligence and failure to exercise due care and that the injuries were not reasonably foreseeable. There are 4 elements of negligence and the rebuttal should be centered to these: duty of care; duty is breached; breach is the proximate cause of the injuries; and breach caused the injuries (Elliott 2007,p.137). The company must prove that it made efforts to remove the hazards inherent in the property but the task proved too gargantuan. Thus it may be deemed to have hurdled the 'reasonable man test' and thus have not breached the duty of providing the due standard of care (Walt v Hertfordshire CC). 5 The company must prove that it was not maintaining a property that constitutes nuisance, which also refers to any act, omission, establishment or condition of property which injures or endangers the health or safety of others. But since this is difficult to prove because the hollowed spaces under the land caused by unfilled cellars no doubt constitute nuisance, the company can throw the blame on the original owner of the property who had the obligation to fill up the subterranean spaces but refused and thus company can escape liability via the 'act of a third party' rule (Perry v Kendricks). The company can also maintain that it is not an 'occupier' under the Occupiers' Liability Act 1984 and thus not liable because it just bought the property and had never occupied it. But it should be ready to answer the definition of occupier in the case Wheat v Lacon where the occupier is one who has control of the premises. Lord Denning expanded its definition by claiming that he who has sufficient degree of control over the property and thus must realise that if he fails to exercise the duty of care, anyone who comes to the property might be harmed is the occupier (Foster 2005,p.78). The company may also rationalise that its putting up of warning signs to the effect that the land is a private property and persons entering it are doing at their own risk free it from any liability as it is an exclusion clause(O'Riordan 2003,p.250). But it has to be ready with the rebuttal that exclusion clauses pertain only to contracts and that the company and the spouses do 6 not have pre-existing contractual relationship as both are trespassers. The company may then assert that spouses' entry on the property despite the warnings make them guilty of contributory negligence. But they must be ready for the decision in the Bishop v JS Starnes & Sons which enunciates that warnings which lack intensity and earnestness and thus do not make the visitors feel reasonably unsafe are insufficient. Moreover, by coming in despite the warnings, the company can claim that spouses must be deemed to have assumed the risk and voluntarily exposed themselves to that risk and thus must be precluded from recovery of damages under Torts or Fatal Accidents Act by the principle of 'volenti non fit injuria'. Conclusion The company is overwhelmingly guilty of negligence and failure to exercise due care under the UK Torts Act, the law on nuisance and the Occupiers Liability Act 1984 and its warnings clearly lack compulsion. Yet it is also a fact that such warnings carry an admonition not to enter a danger zone and thus, the spouses should also be guilty of contributory negligence and acceptance of risk under 'volenti non fit injuria' rule and thus the company's liabilities and damages must also be reduced. 7 REFERENCES Barker, J & Padfield, A 2002, 'Law', Butterworth-Heinemann Elliott, C & Quinn, F 2007, 'Tort law: UK Edition, Pearson Longman. Foster, C 2005, 'Tripping and slipping cases', Sweet & Maxwell Ltd. Getzler, J. 2004, 'A history of water rights at common law', Oxford Univesity Press. Harpwood, V. 2005, 'Modern tort law', Routledge Cavendish. Martin, R & Johnson, L 2001, 'Law and the public dimension of health', Routledge. Murphy, J & Street, H 2007, 'Street on torts', Oxford University Press. O'Hare, J & Browne, K 2005, 'Civil litigation', Sweet & Maxwell. O'Riordan, J 2003, 'A2 law for AQA', Heinemann Potter, D 1997, 'Risk and safety in play', Taylor and Francis. CASES AC Billings & Sons Ltd v Riden (1958) AC 240 411 Addie v Dumbreck (1929) AC 358 Bishop v JS Starnes & Sons (1971) 1 Lloyd's Rep 162 QBD Bolton v Stone (1951) 1All ER1078 Darby v National Trust (2001) PIQR 372 Fairchild v Glenhaven Funeral Services Ltd (2002) 1 NLR 1052 Miller v Jackson (1977) 3 All ER 338, CA Perry v Kendricks (1956) 1 WLR 85, 92 Thomas v British Railways Board (1976) 2 WLR 761 Watt v Hertfordshire CC (1954) 1WLR 835 Wheat v Lacon (1966) 1 All ER582 Read More